Steve Jobs’s hatreds are nearly as famous as his innovations: buttons, styluses, complicated remote controls. He loathed nothing more, however, than Google’s Android—a total rip-off, in his opinion, of Apple’s work. “I will spend my last dying breath if I need to, and I will spend every penny of Apple’s $40 billion in the bank, to right this wrong,” he vowed, according to Walter Isaacson’s recent, hefty biography. Armed with his company’s arsenal of patents, Jobs threatened “thermonuclear war.” He sued the three leading Android handset makers—HTC, Motorola, and Samsung—in countries all around the world, seeking to have their products banned.
But nearly two years after the first salvos were fired, Apple’s war on Android has ac-complished almost nothing. And it’s starting to look as if Apple’s patent portfolio isn’t nearly as lethal as Jobs seemed to think.
Three of Apple’s claims against Motorola recently got tossed out by the International Trade Commission. Many of Apple’s claims against HTC and Samsung failed as well, and the two claims that were upheld were both easy to work around. Samsung simply widened the frame on its Galaxy Tab, and HTC removed a tiny software feature that lets you tap a phone number in an email and pull up a menu of options. Meanwhile, Android keeps growing and has become the top smartphone platform. Samsung has leap-frogged Apple to become the biggest smart-phone maker in the world.
“They’re losing momentum. They’re at the point where the walls start to crumble a little bit,” says Kevin Rivette, a patent attorney and managing partner at 3LP Advisors, a consulting firm that specializes in intellectual property. Apple, he says, should be “looking long and hard at how to cut deals.”
Apple’s strong market position means it could still demand favorable terms from Android players—especially after a robust fourth quarter in which iPhone sales blossomed while Android sales wilted. The company could license its patents and collect royalties on every Android handset sold, as Microsoft has done with top Android phone makers. “The problem is, what happens when you start losing in court? It gets a lot harder to do licensing deals,” Rivette says.
Jobs, clearly, operated from a more emo-tional standpoint. He didn’t want to collect licensing fees from his rivals—he wanted to stamp them out altogether. Now Apple’s new CEO, Tim Cook, faces a difficult choice: should he pursue the visceral path of total war set out by his passionate (but now deceased) predecessor, or should he take a more pragmatic route and sue for peace? Cook’s decision could determine Apple’s fate in the mobile market. It will also demonstrate what kind of company Apple intends to become in the post-Jobs era.